Xbox One used game policy is a lawsuit waiting to happen

Although Microsoft's official stance on how customers can distribute their used games, the company may want to tread lightly.

When Microsoft’s initial Xbox One unveiling ended, the company allowed the press to get a little more up close and personal with the console and ask engineers and designers some questions that weren’t answered during the event. A number of questions that came up were related to used games and how Microsoft would handle them with the Xbox One. Though nothing concrete was reported from the event itself, it seems Wired got the full scoop from a Microsoft Exec who had this to say via email:

"On the new Xbox, all game discs are installed to the HDD to play,” the company responded in an emailed statement... What follows naturally from this is that each disc would have to be tied to a unique Xbox Live account, else you could take a single disc and pass it between everyone you know and copy the game over and over. Since this is clearly not going to happen, each disc must then only install for a single owner. Microsoft did say that if a disc was used with a second account, that owner would be given the option to pay a fee and install the game from the disc, which would then mean that the new account would also own the game and could play it without the disc.

In all fairness, this statement isn’t completely clear, and Microsoft has stated that some policy decisions are still in a state of flux. It says users would be given an option to pay a fee, so it’s possible the other option would be to disable the game on the original account and transfer ownership, but we don’t know the answer just yet.

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A nominal fee could be charged to install previously registered games on Xbox One consoles.

If, however, Microsoft does decide to move forward with this pay-to-replay scheme, it’s a nasty lawsuit waiting to happen. As it stands now, if I buy an Xbox game and no longer want it for whatever reason, I can pass it along to a family member or friend or even resell it without issue. And that’s how it SHOULD be. There is a little something called the First-Sale Doctrine (sometimes called the Right of First Sale) that legally allows individuals to sell legally purchased items to others, including trademarked products after the trademark holder put the products on the market. If you or I buy a book, movie, CD, or even an Xbox console and no longer need or want it, it is our prerogative to resell it without having to compensate the original seller in any way. If that’s how it works for movies, music, books, etc., why should video games be any different?

I’m all for capitalism and think everyone should be fairly compensated for their work. And when a consumer buys a game, that’s exactly what happens. Because consumers may want to recoup some of their investment in that game when they’re done with it, or even if they just don’t like the game, that’s none of the game developer’s concern. They were paid for their work when the item was originally sold.

Admittedly, there is some grey area here with digital distribution and media that’s protected by DRM, but with the Xbox One, we’re talking about physical media that’s purchased as a standalone product, which you may not be able to easily resell without paying other fees, simply because Microsoft says so.

This is a slippery slope, and I hope Microsoft doesn’t go through with it. It’s going to damage retailers that facilitate used game sales, limit consumer freedom, and it could open the door for more restrictive measures moving forward. If Microsoft does go through with it, though, I suspect the lawsuits will pile up, as Microsoft is such a rich target to go after.

Copyright © 2013 IDG Communications, Inc.

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